Case presented by: Ndohnui Fabrice Pavel. 08 July, 2024.

Case:Dr Ashwini Kumar vs Union Of India Ministry Of Home Affairs

Court: Supreme Court of India.

Date of Legal Proceedings: 5 September, 2019

Bench: Sanjiv Khanna, Dinesh Maheshwari, Ranjan Gogoi

Appellant: Dr Ashwini Kumar

RespondentUnion Of India Ministry Of Home Affairs

Equivalent citations: AIRONLINE 2019 SC 1002, (2019) 7 MAD LJ 81, (2019) 12 SCALE 125, (2019) 6 ALL
WC 6156

FACTS ABOUT THE CASE.

A recent Judgement passed by the Supreme Court in the 5th September discussed the need of a
separate law against custodial torture. The petition filed laid a distinctive demand of having an entirely
separate legislation for the Country which deals with Custodial Torture. Another point of law to be
discussed in the judgement is the scope and extent of the doctrine of separation of powers, which is
being discussed long since Keshavananda Bharti Case.1 The petition was filed by renowned Senior
Advocate Dr. Ashwani Kumar but unfortunately, this petition was dismissed by the Supreme Court citing
various reasons amongst one which said that the issue has been laid before the Law Commission for its
perusal and that soon something worthy is expected to come out of it.

ISSUES
The applicant had filed the above-captioned Writ Petition (Civil) No. 738 of 2016 under Article 32 of the
Constitution of India for an effective and purposive legislative framework/law based upon the
‘Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (“UN
Convention”, for short) adopted by the United Nations General Assembly and opened for signature,
ratification and accession on 10 th December 1984. India had signed the UN Convention on 14 th
October 1997. However, India has not ratified the UN Convention

PARTY'S ARGUEMENT

Petitioner's Arguement; It may be noted here that the applicant was the Chairperson of the Select
Committee of the Rajya Sabha that had submitted the report on custodial torture depicting the need for
a comprehensive standalone legislation.

Respondent Arguement; Union of India, in its response, has stated that the draft legislation prepared on
the basis of the Law Commission’s report is under active consideration and was referred to stakeholders,
that is, the States and Union Territories for their inputs and suggestions. It was highlighted that the
‘Criminal Laws’ and the ‘Criminal Procedure’ fall in the Concurrent List of the Seventh Schedule to the
Constitution of India and, therefore, comments and views of the State Governments/Union Territories
were solicited on the recommendations made by the Law Commission of India. There may have been
some delay as some States did not furnish their response, albeit the Union of India took steps by sending
reminders on 27 th June 2018, 27th November 2018 and 20th December 2018. Subsequent affidavit
dated 12 th February 2019 discloses that all States and Union Territories have filed their
inputs/suggestions and that the question of enacting a legislation is under consideration

ANALYSIS OF THE LAW

1. Article 245 of the Constitution empowers Parliament and the state legislatures to enact laws for
the whole or a part of the territory of India, and for the whole or a part of the State respectively,
after due debate and discussion in Parliament/ the state assembly.

2. By virtue of Articles 73 and 162 of the Constitution, the powers and functions of the executive
are wide and expansive, as they cover matters in respect of which Parliament/state legislature
can make laws and vests with the
 3. executive the authority and jurisdiction exercisable by the Government of India or the State
Government, as the case may be. As a delegate of the legislative bodies and subject to the terms
of the legislation, the executive makes second stage laws known as ‘subordinate or delegated
legislation’

PRECEDENT ANALYSIS OF THE LAW

The applicant predicating his case on the right to life and liberty and judgments of this Court had argued
that custodial torture being crime against humanity which directly infracts and violates Article 21 of the
Constitution, this Court should invoke and exercise
 jurisdiction under Articles 141 and 142 of the Constitution for the protection and advancement of
human dignity, a core and non- negotiable constitutional right. In D.K. Basu v. State of West Bengal1
custodial torture and violence was described as a wound inflicted on the soul, so painful and paralysing
that it engenders fear, rage, hatred and despair, and denigrates the individual. In Sunil Batra v. Delhi
Administration and Others2, this Court had observed that the prisoners have enforceable liberties,
though devalued but never demonetised and, therefore, it is within the jurisdictional reach and range of
this Court’s writ to deal with prison and police caprice and cruelty. Similarly, in Francis Coralie Mullin v.
Administrator, Union Territory of Delhi and Others 3, this Court had observed that torture in any form is
inhuman, degrading and offensive to human dignity and constitutes an inroad into the right to life and is
prohibited by Article 21 of the Constitution, for no law authorises and no procedure permits torture or
cruelty, inhuman or degrading treatment. Reference was made to Article 5 of the Universal Declaration
of Human Rights and Article 7 of the International Covenant on Civil and Political Rights which prohibits
torture in all forms in absolute terms. Recently, in K.S. Puttaswamy and Another v. Union of India and
Others4 this (1997) 1 SCC 416 (1978) 4 SCC 494 (1981) 1 SCC 608 (2017) 10 SCC 1
Court had once again emphased on the right to human dignity which, first and foremost, means the
dignity of each human being ‘as a human being.

COURT'S ANALYSIS.

From the above authorities, it is quite vivid that the concept of constitutional limitation is a facet of the
doctrine of separation of powers. At this stage, we may clearly state that there can really be no
straitjacket approach in the sphere of separation of powers when issues involve democracy, the essential
morality that
 flows from the Constitution, interest of the citizens in certain spheres like environment, sustenance of
social interest, etc. and empowering the populace with the right to information or right to know in
matters relating to candidates contesting election. There can be many an example where this Court has
issued directions to the executive and also formulated guidelines for facilitation and in furtherance of
fundamental rights and sometimes for the actualisation and fructification of statutory rights.

COURT'S VERDICT

Director, Health Services should prepare such a penal for all Tehsils and Districts as well Copies of all the
documents including the memo of arrest, referred to above, should be sent to the illaqa Magistrate for
his record. The arrestee may be permitted to meet his lawyer during interrogation, though not
throughout the interrogation. A police control room should be provided at all district and state
headquarters, where information regarding the arrest and the place of custody of the arrestee shall be
communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police
control room it should be displayed on a conspicuous notice board. Notwithstanding rejection of the
prayer made by the applicant, we would in terms of the above discussion clarify that this would not in
any way affect the jurisdiction of the courts to deal with individual cases of alleged custodial torture and
pass appropriate orders and directions in accordance with law.